High Court: School loses appeal against finding that teacher was unfairly dismissed

A school has lost its appeal against the finding that a teacher who signed a “fixed term” contract two years after she began teaching in the school was unfairly dismissed when her contract was terminated.

Finding that the contract was void because it purported to waive the statutory protections the teacher had acquired under the Unfair Dismissals Act 1977, Mr Justice Garrett Simons said the “fixed term” contract exclusion under the act did not apply in this case in the absence of informed consent.

Background

In 2013, Dawn Marie Conaty began working as an English and Religion teacher in Malahide Community School.

In October 2015, the school required Ms Conaty to sign a written contract which purported to take the form of a “fixed term” contract with an end date of 31 August 2016.

In August 2016, Ms Conaty’s contract was not renewed and her employment was terminated.

Procedural History

Ms Conaty submitted a complaint to the Workplace Relations Commission, where her complaint was rejected on the basis that the dismissal was excluded from the Unfair Dismissals Act 1977 under s.2(2)(b), which states that the Act does not apply in relation to “dismissal where the employment was under a contract of employment for a fixed term or a specified purpose…and the dismissal consisted only of the expiry of the term without it’s being renewed under the said contract…”.

Ms Conaty appealed to the Labour Court, which found in her favour and made an order directing the school to re-engage her for the 2018/2019 school year.

The school principal had explained to the Labour Court that she had mistakenly thought that Ms Conaty’s employment for the school years 2013/2014 and 2014/2015 had been on the basis of “fixed term” contracts. In fact, there was no written contract in place for either year

The school appealed and the High Court remitted the case to the Labour Court for reconsideration. Ms Justice Miriam O’Regan said she could not be satisfied that the correct principles of law were applied in the absence of:

Engagement or consideration of the impact of s.2(2)(b) on the circumstances before the labour court

Some weighing in the balance of the provisions of s.2(2)(b)

An explanation of the perceived difference between exclusion and waiver identified by the labour court in its decision and why notwithstanding such difference the jurisprudence in respect of the waiver was sufficient to address the critical/central issue between the parties

The Second Labour Court Decision

In June 2018, the Labour Court interpreted s.2(2)(b) as involving an implicit requirement that a “fixed term” contract must clearly stipulate in writing what is being waived. On this interpretation, it was not sufficient for the contract simply to record that the Unfair Dismissals Act did not apply. Rather, the written terms of the contract should have reflected the fact that Ms Conaty was waiving her acquired rights to permanent employment.

The Court also concluded that Ms Conaty had not been aware that she was signing away her rights as a permanent employee in October 2015. The Court determined that s.2(2)(b) was inapplicable because:

There was an absence of informed consent;

The reference to the possibility of the contract being renewed meant that the requirement that the termination date be capable of being ascertained was not met;

The contract was not a bona fide contract as the date of commencement had already passed at the time the contract was signed.

The Court found that in seeking agreement from Ms Conaty to exclude or limit the application of the Unfair Dismissals Act 1977, the October 2015 contract was in breach of s.13 of the Unfair Dismissals Act 1977 and therefore void. The Court concluded that Ms Conaty had been unfairly dismissed when her contract was not renewed and ordered the school to re-engage her for the 2018/2019 school year.

High Court

The school appealed the second Labour Court decision, arguing that the Court erred in:

Its interpretation of s.2(2)(b), in that if a contract satisfies the conditions set forth under the section, then the contract is excluded from Act – therefore the Court erred in introducing an additional condition, namely a requirement for “informed consent”;

Relying on s.13 which is concerned only with waivers and has no relevance to the exclusionary provisions under s.2;

Finding that the October 2015 contract was not a bona fide fixed term contract – in the fact that the employment had commenced prior to the contract being signed did not affect its validity. The reference to the possibility of the contract being renewed was merely aspirational, and did not mean that the contract was not for a fixed term.

Firstly considering s.13, which states that “[a] provision in an agreement …shall be void in so far as it purports to exclude or limit the application of, it is inconsistent with, any provision of this Act”, Mr Justice Simons said the fact that the actual wording of the October 2015 contract appeared to echo the waiver for “fixed term” contracts under s.2(2)(b) obscured the purported effect of the contract. He said the purported effect of the contract was to extinguish Ms Conaty’s acquired protection against unfair dismissal and that but for the offending provision of that contract, Ms Conaty would have retained her status as a permanent employee entitled to the full protections of the act – therefore the offending provisions of the contract were void.

Mr Justice Simons was also satisfied that the underlying principle in case law that a person cannot be taken to have waived a statutory right unless they make an informed decision to do so, applied equally to the advance waiver of rights under s.2(2)(b).

Mr Justice Simons concluded that the terms of the contract did not satisfy s.2(2)(b) because: the terms of the contract were not certain; Ms Conaty’s employment was not under fixed term contract; and signing the contract was not sufficient to waive Ms Conaty’s statutory rights in the absence of informed consent.